1. Three systems, two courts

Family law here is the law of marriage, of the relationship that marriage creates, of parent and child, and of what happens to property when a person dies. Smart's account, written about 1973, is still the map. The statutes of 2007, 2009 and 2024 have redrawn parts of it. They have not replaced the map.

There are three systems. The general law is the common law, equity, and the enactments in force. For marriage that means, above all, the Christian Marriage Act (Cap. 95), the Civil Marriage Act (Cap. 97), and the Matrimonial Causes Act (Cap. 102). A marriage under Cap. 95 or Cap. 97 is monogamous. The Mohammedan Marriage Act (Cap. 96) does not itself set out a code of Muslim marriage. It recognises a marriage that is valid by Mohammedan law, between persons who profess that faith, as valid for civil purposes, and it lets the courts receive proof of that marriage and of its dissolution. Customary law is the third system. It is not one code. It is the current law of the chiefdom that applies to the parties, so far as it is not repugnant to natural justice, equity and good conscience, and not incompatible with an enactment that applies to the Provinces.

Two court systems apply them. The High Court and the magistrates apply the general law. A Local Court in the Provinces applies customary law, and the general law only where customary law has no rule for the transaction. Section 21 of the Courts Act 1965 takes away the High Court's original jurisdiction to establish the existence or dissolution of a marriage governed by customary law, or to try a claim founded on such a marriage. A customary marriage is not, for that reason, legally invisible. A general-law court can still recognise it when a statute, or the justice of the case, requires recognition. It cannot dissolve it.

The received English law is not whatever English law is today. Section 74 of the Courts Act 1965 receives the common law, the doctrines of equity, and the statutes of general application in force in England on 1 January 1880. Later English statutes do not apply unless Sierra Leone has adopted them. Later English decisions are in fact cited, especially on cruelty, desertion and non-consummation, because the Matrimonial Causes Act was copied from the English Act of 1950, with one important omission: insanity is not a ground for divorce here.

Hyde v Hyde is the sentence that still organises the general-law courts. Marriage, for the matrimonial remedies of those courts, is the voluntary union for life of one man and one woman to the exclusion of all others. A customary marriage, which may be polygamous, is a marriage. It is not a marriage to which those remedies attach. Baindail is the other half. A potentially polygamous marriage is nonetheless a marriage, so that a later monogamous ceremony with someone else is bigamous.